obiter | ByLawyers News and Updates

Off the plan – VIC

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To assist practitioners advising clients who are purchasing off the plan, a new precedent has been added to the By Lawyers Purchase of Real Property (Vic) guide.

The Enclosure – Considerations when purchasing off the plan provides a potential purchaser with plain language information about:

  • What ‘off the plan’ means.
  • The risks of purchasing off the plan.
  • The advantages of purchasing off the plan.

The enclosure covers all the pertinent considerations for a purchaser before entering into a contract to purchase an off the plan property. The potential risks are clearly stated, including:

  • Being locked in until the sunset date.
  • Potential for loss if the market deteriorates between the day of sale and the settlement date.
  • Special conditions that operate in the vendor’s favour.
  • Possible dissatisfaction with finished product.
  • Changes to the building.
  • Changes to the owners corporation.
  • Additional legal costs being involved.

A related new precedent ‘Initial letter to proposed off the plan purchaser’ has also been added.

Both new precedents can be found in folder A. Getting the matter underway on the Purchase of Real Property (Vic) matter plan.

This helpful new precedent has been created by our Victorian property author Russell Cocks. It was developed in response to a request from a By Lawyers subscriber.

Federal Circuit and Family Court of Australia – FED

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The Federal Circuit and Family Court of Australia (FCFCOA) commences operation on 1 September 2021.

The FCFCOA is an amalgamation of the former Family Court of Australia and Federal Circuit Court of Australia.

The new court has two divisions:

  • Division 1 is a superior court of record that includes the judges from the former Family Court. It deals with the most complex matters and exercises appellate jurisdiction.
  • Division 2 is a court of record that includes the judges from the former Federal Circuit Court, which is the single point of entry for all family law and child support matters.

There is a common set of forms and rules across the two divisions. The Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (the Family Law Rules 2021) apply in all family law matters, except in Western Australia where the Family Court Rules 2021 (WA) apply. Western Australia also has its own dedicated portal – the eCourts Portal of Western Australia.

They provide for the practice and procedure in both divisions of the FCFCOA except for a few matters such as transfer from Division 2 to Division 1 as set out in the Family Law Rules 2021.

The new court’s website is available: www.fcfcoa.gov.au.

A practice direction deals with Transitional arrangements.

Division 2 of the new court also has a general federal law jurisdiction, like the former Federal Circuit Court.

All By Lawyers Family law publications – Children, Divorce, Financial Agreements, and Property Settlement – are being updated for the commencement of the new court. This includes a full review of the:

  • commentaries, for the new terminology, procedures and hyperlinks to the new rules;
  • matter plans, with a single Going to court folder reflecting the new process; and
  • precedents, to incorporate all necessary changes.

There is a 90 day grace period for using the old forms in the new court. The new court forms will be added to the By Lawyers matter plans as they become available.

By Lawyers always keep our subscribers up to date!

COVID measures for companies – FED

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COVID measures for companies have been further extended. These temporary measures are currently set to expire on 31 March 2022.

Company execution

The Treasury Laws Amendment (2021 Measures No. 1) Act 2021 (‘the 2021 measures’) commenced on 13 August 2021. They extend and expand on the measures previously introduced in 2020.

A company can execute a document electronically under s 127 of the Corporations Act 2001. Signatories can sign separate counterpart copies.

The method used must:

  • be appropriate in the circumstances,
  • identify the person in the electronic communication, and
  • indicate the person’s intention in respect of the contents of the document.

The measures also allow for alternatives to execution normally requiring a common seal.

Company meetings

The 2021 measures also extend and expand on the previous COVID measures for companies holding meetings. They modify the provisions of the Corporations Act 2001 and the Corporations Regulations 2001, or any equivalent provisions in a company constitution, that require or allow a meeting to be held, or that regulate giving notice of a meeting, or the conduct of a meeting. The provisions include:

  • a meeting can be held using one or more platforms such as Zoom, Skype or Microsoft Teams;
  • all persons participating electronically are taken for all purposes, including quorum requirements, to be ‘present’ at the meeting;
  • a vote taken at the meeting must be taken on a poll, and not on a show of hands, by using technology to give each person entitled to vote the opportunity to participate in the vote in real time or in advance;
  • persons attending the meeting to speak, such as asking questions, can do so using technology;
  • a proxy may be appointed using technology specified in the notice of the meeting; and
  • notice of a meeting may be given by using technologies. For example, a company could send members an email attaching a notice of a meeting and other material, or provide a link to the notice and the other material for viewing or download.

The By Lawyers Dealing with COVID-19 legal issues – Some practical information publication has been updated accordingly. This helpful summary guide to COVID measures in all states is available at the top of all By Lawyers matter plans.

New rules for IVOs – VIC

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There are new rules for IVOs in the Magistrates’ Court. The Magistrates’ Court (Personal Safety Intervention Orders) Rules 2021 commenced on 29 August 2021.

Intervention orders are made in the Magistrates’ Court under either the Family Violence Protection Act 2008 or the Personal Safety Intervention Orders Act 2010.

The Magistrates’ Court (Personal Safety Intervention Orders) Rules 2021 and the Magistrates’ Court (Family Violence Protection) Rules 2018 provide for the practice and procedure in all proceedings under the respective Acts, including service, orders, subpoenas, affidavits and hearings. The two sets of rules are largely uniform and therefore procedure under both Acts is essentially the same.

The new rules for IVOs revoke and replace these previous rules:

  • Magistrates’ Court (Family Violence Protection) Rules 2008;
  • Magistrates’ Court (Family Violence Protection Rules) (Amendment No. 1) Rules 2011;
  • Magistrates’ Court (Vexatious Proceedings Amendments) Rules 2014;
  • Magistrates’ Court (Family Violence Protection) Amendment Rules 2017;
  • Magistrates’ Court (Family Violence Protection) Amendment Rules 2018.

The By Lawyers Intervention orders commentary has been updated with links to the new rules. The specialist Intervention orders guide is part of the Criminal – Magistrates Court publication.

Enforcement – VIC

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The By Lawyers Enforcement (VIC)  guide has been extensively reviewed. It provides practitioners with a wealth of practical information on the options available to recover judgment debts.

Three new precedents have been added to the matter plan and the commentary has been revised and updated.

New precedents

  • Example content – Affidavit in support of application for charging order summons. A judgment or order for the payment of a sum of money may be enforced by obtaining a charging order from the Supreme or County courts. This creates an equitable charge over stocks and shares, or any funds in court in which the judgment debtor has a beneficial interest.
  • Example content – Affidavit in support of application for garnishee summons.
  • Example content – Affidavit in support of application for warrant for seizure or sale or for possession of land.

Commentary enhancements

  • New commentary on stop orders, which prevent funds in court being paid out without notice being given to the person who applied for the order.
  • New commentary on the proper use of bankruptcy procedures, which should not be used for the purpose of putting pressure on a debtor to pay the debt.
  • Enhanced commentary on conduct money, the need for it to be sufficient and outlining some practical considerations.
  • Expanded commentary on post-examination procedures, including examination of the debtor on ‘the material questions’ in the  Supreme or County courts.
  • Further commentary on the instalment order process, including attachment of earnings, and the reluctance of the courts to make orders that will force the debtor into extreme hardship or to live a life of deprivation.
  • Expanded commentary on garnishee orders.
  • Expanded commentary on warrants of seizure and the sale of property – goods and land.
  • Enhanced commentary highlighting the difficulties and reality of enforcing judgment debts and managing client expectations, providing practical guidance on securing the best outcome for the client.

The Enforcement guide review, undertaken by our Victorian litigation author Nawaar Hassan, reflects the commitment of By Lawyers to updating and enhancing our publications.

New family law court – FED

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The new family law court, the Federal Circuit and Family Court of Australia (FCFCOA), commences 1 September 2021.

The FCFCOA will have 2 divisions. Essentially Division 1 replaces the existing Family Court and Division 2 replaces the existing family law functions of the Federal Circuit Court. There will be a single point of entry to the new family law court through Division 2.

Summary of the changes

  • There will be harmonised rules, new practice directions, updated forms and one website.
  • The new court’s website will be launched on 1 September 2021 with simplified access and navigation.
  • All forms will be updated. An Application in a Case will become an Application in a Proceeding.
  • Transitional arrangements will allow for the use of new forms, with a 90 day grace period for old forms.
  • Existing matters will generally remain in the existing courts, unless the parties are advised otherwise.
  • Division 2 will have a general federal law jurisdiction similar to that of the Federal Circuit Court currently.
  • Division 1 will have jurisdiction to hear family law appeals and there will be a single national appeals filing registry.
  • A National Contravention List will be introduced and a practice direction will accompany the commencement of the list.
  • The new court will have Senior Judicial Registrars, Judicial Registrars, and Deputy Registrars. While the titles change, their powers and roles will be the same as existing Registrars.
  • Child Disputes Services will be known as the Court Children’s Service. Family Consultants will be known as Court Child Experts.
  • Parties in children’s matters will receive assistance earlier, with a greater emphasis on expert guidance.

Updates for the FCFCOA commencement on 1 September 2021

All By Lawyers Family law guides – Children, Divorce, Financial Agreements, and Property Settlement – will be updated to reflect the commencement of the new court. This will include a full review of the:

  • commentaries for the new procedures and rules;
  • matter plans with a single Going to court section reflecting the new process;
  • forms – with all new forms on the matter plans; and
  • precedents, to incorporate the changes where necessary.

By Lawyers always keep our content – and our subscribers – up to date!

Employment law publication – FED

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The Employment Law publication has been extensively reviewed and enhanced. This work is part of By Lawyers continual commitment to updating and enhancing our publications.

Key components of the Employment Law publication – the matter plan, commentary and 101 Employment Law Answers reference materials – have been re-organised and augmented.

Matter plan

The matter plan has been reordered to:

  • better reflect the distinction between matters relating to employment agreements and employment disputes;
  • separate the content – both commentary and precedents – on employment agreements and non-employment agreements, such as independent contractor agreements;
  • add a new dedicated folder for the important content on workplace bullying.

Commentary

Updates include the following:

  • Getting the matter underway – initial consideration of employment status;
  • Awards –  expanded discussion of applicability and effect of awards;
  • Coverage of The National Employment Standards (NES) and a link to the Fair Work Ombudsman’s new Small Business Employer Advisory Service;
  • The new provisions for casual conversion;
  • Other rights and entitlements – additional commentary on children in the workplace, overtime, vehicles, deductions, access to records and employers in liquidation;
  • Employment agreements – considerations for negotiating and documenting terms, with a link to the Commonwealth Government’s helpful Employment contract tool;
  • Termination of employment, including when it happens during workers compensation claims;
  • Redundancy – entitlement under the NES and the connection to unfair dismissal;
  • Unfair dismissal claims – coverage of all relevant considerations, including who is protected, the small business exception, high-income threshold, what the Fair Work Commission considers, the application and response, the claims procedure, conciliation, hearings and conferences, remedies and costs orders;
  • General protections claims – coverage of adverse action, discrimination, other protections and sham contracts; and
  • Dedicated commentary on unlawful termination claims.

The comprehensive History of legislative changes has been relocated to 101 Employment Law Answers. This will assist when the rights of a client need to be determined as at a certain prior date.

101 Employment Law Answers

This handy reference material has received a comprehensive revamp that is a precursor to a more detailed review. As with all By Lawyers reference materials 101 Employment Law Answers provides relevant and up-to-date case law summaries and links to legislation. It covers such topics as leave entitlements, the multi-indicia test, abandonment, non-solicitation, redundancy entitlement, and unfair dismissal.

Franchising – All states

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Franchising laws across Australia have been amended.

Franchising Code of Conduct

The Franchising Code of Conduct is a mandatory industry code that regulates the conduct of franchising parties across Australia.

Significant amendments to the code introduced by the Competition and Consumer (Industry Codes—Franchising) Amendment (Fairness in Franchising) Regulations 2021 give further protection to franchisees. There are new rights in relation to disclosure, remedies and termination.

Dispute resolution amendments apply to disputes notified on or after 2 June 2021.

The amendments providing franchisees with the right to greater information and remedies apply from 1 July 2021.

Changes to the required disclosure document apply from 1 November 2021.

Some of the key changes include:

  • Franchisors are required to provide a mandatory fact sheet in addition to the disclosure document, and to including additional information in the disclosure document. The disclosure requirements also apply to the transfer of an existing franchise agreement.
  • Franchisors are prohibited, in certain circumstances, from requiring franchisees to undertake significant capital expenditure.
  • New arbitration and conciliation mechanisms are available.
  • Cooling off periods have been extended from 7 to 14 days. They also apply to a broader range of scenarios.
  • Franchisees have the right to request early termination of a franchise agreement.
  • The ability for franchisors to terminate agreements for special circumstances without notice has been restricted.

Updates to By Lawyers publications

The commentary and precedents within the By Lawyers Business and Franchise publications have been updated to reflect these amendments.

See Folder ‘E. IF REQUIRED – FRANCHISES‘ on the matter plans. This includes the Franchise Agreement precedent and Model disclosure document for franchisee or prospective franchisee precedent. Links are available on the mater plan to the new Information statement for prospective franchisees published by the ACCC, and to the new Key facts sheet smart form.

1 July updates – All states

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1 July updates are a big focus for By Lawyers. This is because many Commonwealth and state legislative instruments provide for the scheduled indexing of relevant monetary amounts and for adjustments – usually increases – in government fees and charges. Those regular updates occur every year and have an impact on many different areas of law and therefore on numerous By Lawyers publications.

These updates can include court filing fees, lodgement fees for property dealings, land tax thresholds, minimum weekly compensation amounts for Workers Compensation, and penalty units for fines for various criminal offences and civil penalty provisions.

By Lawyers always monitor and action these changes for our subscribers. Each year we ensure that our publications are amended where necessary to reflect 1 July updates.

We also monitor and update for similar legislative indexing and increases which occur regularly at other times of the year. These include 1 January changes and also other specific dates for various areas of law as prescribed by some statutes.

The 1 July updates have been applied this year, or are in the process of being applied as they get released, to the following By Lawyers publications:

  • Conveyancing and Property;
  • Business and Franchise;
  • Criminal;
  • Litigation;
  • Estates;
  • Injuries; and
  • Employment.

Quite separately, there is also usually a raft of new and amending legislation, from both Commonwealth and state parliaments, which is set to commence on 1 July. This year is no different in that regard. By Lawyers have made various substantive amendments to a number of publications to account for the commencement of such legislation. Please see the various other Obiter posts dealing with those updates.

By Lawyers always keep our content – and our subscribers – up to date!

Defamation reforms – All states

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The By Lawyers Defamation and protecting reputation guide has been substantially reviewed and updated. This review is related to the current and imminent defamation reforms to the various laws around the country.

Practitioners may be aware of the long-heralded and substantial reforms to the uniform defamation law, following approval at COAG in 2020. As the uniform law is not Commonwealth legislation, but depends on the various state and territory Defamation Acts, implementing the reforms requires each state to pass amendments to its own Act.

So far only some states have passed their legislation, with some including NSW, VIC, QLD, SA and ACT to commence from 1 July 2021. The other states and territories are expected to follow soon. However, the result is that for the first time since 2005 – and for an indeterminate but hopefully brief period – Australia does not have uniform defamation laws. Rather, there are different laws in different states.

The By Lawyers Defamation and protecting reputation publication is being updated on an interim and graduated basis for these amendments. The publication will be finally updated when the defamation reforms become law in all states and territories.

The key aspects of the current amendments are:

  • a new ‘serious harm’ requirement;
  • new defences, including a new ‘public interest’ defence;
  • amendments to the way some damages for reputational harm are capped;
  • new limitation periods taking account of the fact content remains online for years.

There is also a second round of defamation reform currently under consideration. The main focus of these reforms is the liability of social media companies for defamation. Further updates to the By Lawyers Defamation and protecting reputation publication will occur when the proposed reforms are enacted.

As a precursor to these reforms, By Lawyers has been working with our author Peter Breen to revise and streamline our publication. Users will find that the matter plan now provides the usual, practical By Lawyers guidance to conducting a matter, with the relevant commentary, precedents and example content in sequential order. The commentary is adapted from Peter’s book Defamation and protecting reputation which is reproduced in its entirety in the ‘Reference materials’ folder on the matter plan in the By Lawyers guide.

The detail of the current reforms is explained in the publication.

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